Can a Wisconsin lawyer threaten criminal prosecution or a disciplinary grievance to gain leverage in a civil matter?

Plain-English summary

Opinion EF-21-01 (January 1, 2021) revisits questions the committee first addressed in Opinion E-01-01 (2001). When E-01-01 issued, the Rules contained SCR 20:3.10, which barred lawyers from "presenting or threatening to present criminal charges solely to gain an advantage in a civil matter." That rule was repealed in 2007 as part of Wisconsin's "Ethics 2000" revision, and the Supreme Court that year adopted SCR 20:1.8(h)(3), barring agreements that limit a person's right to report a lawyer's conduct to the disciplinary authorities. The committee reconsiders the questions under the current Rules and withdraws E-01-01.

On threatening criminal prosecution, the committee concludes there is no longer an express prohibition, noting the ABA Model Rules never contained the DR 7-105(A) language and that its omission was deliberate (citing ABA Formal Opinion 92-363). The absence of a specific rule does not remove other constraints. Before threatening to report an opposing party to prosecuting authorities, a lawyer must confirm: the belief that criminal conduct occurred is well founded in fact and law (SCR 20:3.1); the statements about criminality and the intent to report are made in good faith and are not false (SCR 20:4.1(a)); the asserted criminal conduct is related to the client's civil claim and the threat is not merely to embarrass, delay, or burden a third person (SCR 20:4.4(a)); and the lawyer does not state or imply an ability to influence the criminal process improperly (SCR 20:8.4(d)). The committee stresses that in Wisconsin only the district attorney may bring a criminal action, so a lawyer may say she intends to report conduct but may not claim she will commence a prosecution. The committee also concludes there is no prohibition on agreeing, as part of a settlement, not to report the alleged criminal conduct.

On threatening disciplinary action, the committee reaffirms E-01-01's position: a lawyer who seeks a bargaining advantage by threatening to report another lawyer's misconduct commits misconduct, because reporting serious misconduct is itself an obligation under SCR 20:8.3(a), and an agreement not to report is now expressly barred by SCR 20:1.8(h)(3). The committee adds that even outside a bargaining context, a lawyer should exercise caution before accusing another lawyer of misconduct: threatening an unwarranted grievance violates SCR 20:3.1, threatening one with no intent to file violates SCR 20:4.1, and a baseless accusation can violate SCR 20:4.4(a) and the attorney's oath (SCR 40.15, enforceable through SCR 20:8.4(g)). Raising a genuine, good-faith concern such as opposing counsel's conflict remains appropriate.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. A Wisconsin lawyer may, in a civil matter, inform an opposing party that their conduct may be criminal and that the lawyer intends to report it, provided the criminal matter is related to the civil claim, the lawyer holds a good-faith belief both the civil claim and the criminal charges are well founded, and the lawyer does not suggest an ability to influence the prosecution. The committee concludes the parties may agree in settlement not to report the alleged crime. The committee concludes a lawyer may not threaten to report another lawyer's misconduct to gain an advantage, and may not make or offer any agreement limiting a person's right to report a lawyer to the disciplinary authorities.

Common questions

Q: Can a Wisconsin lawyer threaten criminal charges to settle a civil case?

A: Yes, within limits. The committee concludes no rule bars it where the criminal matter is related to the civil claim, the lawyer has a good-faith belief both are supported by law and fact, and the lawyer does not suggest improper influence over the criminal process.

Q: Can the lawyer say she will prosecute or file the criminal charges herself?

A: No. The committee concludes that because only the district attorney may bring a criminal action in Wisconsin, a lawyer may say she intends to report conduct but may not state that she will commence a criminal action, and may not imply a relationship with the prosecutor will ensure charges.

Q: Can a settlement include an agreement not to report the alleged crime?

A: Yes. The committee concludes there is no prohibition on agreeing, as part of settling a client's matter, not to report the alleged criminal conduct.

Q: Can a lawyer threaten to file a disciplinary grievance to gain an advantage?

A: No. The committee concludes that using the threat of reporting another lawyer's misconduct for advantage is itself misconduct, because reporting serious misconduct is an obligation under SCR 20:8.3(a), and SCR 20:1.8(h)(3) bars agreements limiting the right to report.

Background and rules framework

The opinion interprets SCR 20:3.1 / Model Rule 3.1 (meritorious claims), SCR 20:4.1 / Model Rule 4.1 (truthfulness to third persons), SCR 20:4.4 / Model Rule 4.4 (respect for third persons), SCR 20:8.3 / Model Rule 8.3 (reporting professional misconduct), SCR 20:8.4(b) and (d) / Model Rule 8.4 (misconduct, including stating or implying improper influence), and SCR 20:1.8(h)(3) / Model Rule 1.8 (agreements limiting the right to report). It also relies on the attorney's oath, SCR 40.15, enforceable under SCR 20:8.4(g). The opinion notes the 2007 repeal of former SCR 20:3.10 and the resulting reliance on these general rules.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:3.1 / Model Rule 3.1 (meritorious claims and contentions)
• Wis. SCR 20:4.1(a) / Model Rule 4.1 (truthfulness in statements to others)
• Wis. SCR 20:4.4(a) / Model Rule 4.4 (respect for rights of third persons)
• Wis. SCR 20:8.3 / Model Rule 8.3 (reporting professional misconduct)
• Wis. SCR 20:8.4(b), (d) / Model Rule 8.4 (misconduct; improper influence)
• Wis. SCR 20:1.8(h)(3) / Model Rule 1.8 (no agreement limiting the right to report)
• Wis. SCR 40.15 (attorney's oath), 20:8.4(g)

Statutes:

• Wis. Stat. 943.30(1) (extortion); Wis. Stat. 946.67 (compounding); Wis. Stat. 978.05 (district attorney prosecutes)

Cases:

• Disciplinary Proceedings against Coe, 2003 WI 117, 665 N.W.2d 849 (2003), difficulty enforcing former SCR 20:3.10
• O'Neil v. State, 237 Wis. 391, 296 N.W. 96 (1941), demanding payment with a stated intent to prosecute
• Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W. Va. 1992), threat of prosecution over embezzled funds as a legitimate tactic

Other opinions cited:

• ABA Formal Op. 92-363: threats of prosecution permitted if related, well founded, and without improper influence
• ABA Formal Op. 94-383: threatening to report a lawyer as a bargaining point
• Wisconsin Formal Op. E-01-01 (withdrawn by this opinion)

See also

• DC Ethics Op. 220: Threats to File Disciplinary Charges
• DC Ethics Op. 246: Duty to Report Another Lawyer's Misconduct
• ABA Formal Op. 06-439: Truthfulness in Negotiation and Mediation

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-21-01%20Threatening%20Criminal%20Prosecution%20FINAL.pdf